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Decriminalising defamation in India

Sushil Kumar Jain

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Understanding defamation

Before starting with the topic “Decriminalizing Defamation in India” it is imperative to understand the meaning and concept of “defamation”.

The word “defame” means “to harm the reputation of”. Defamation of a person is an offence punishable u/s 499-500 of the Indian Penal Code. The offence can be traced to violation of “right to reputation” which is a genus of the “right to life and liberty” protected under Article 21 of the Constitution of India. If a person’s reputation is harmed, his rights under Article 21 of the Constitution of India are infringed for which he has remedy of torts under civil law and remedy u/s 499-500 of the IPC under the criminal law. The said section provides that any words, signs or representations which harm or intend to harm the reputation of a person would constitute the offence of defamation. There are nine exceptions provided to the said definition and an act or publication is not defamation if it falls under any of these nine exceptions.

 A delicate balance

Undoubtedly on one hand, an individual’s right of reputation is protected under Article 21 and at the same time freedom of speech and expression is recognized and protected under Article 19(1)(a) of the Constitution. Since both the rights are protected, one right cannot be given preference over the other and therefore the state whose actions are subject to Article 13 cannot, by way of legislation, indicate a preference on one right over the other. Both the rights have to be harmoniously construed. (Chintaman Rao v. State of M.P., AIR 1951 SC 118).

Creation of criminal remedy creates an imbalance as it has a chilling effect on the exercise of a right of speech. The mere threat of criminal prosecution and the possibility of a prison sentence and fine is intended and directed towards discouraging people from speaking out.

Why decriminalising

Defamation was sought to be decriminalized on the ground that the colonial law has become antithetical to free speech and is being used for stifling voices. Defamation of an individual by another individual is a civil wrong or tort, it can be remedied by an action for damages. The enabling power in Article 19(2) to impose reasonable restrictions is intended to safeguard the interests of the State and the general public and not of any individual. Criminalizing defamation has the effect of virtually negating the freedom of speech and expression. The law of defamation is unreasonable and vague in as much as even truth is not a complete defence as per the provision. It is only a defence if the matter is concerned with public good which itself is an extremely vague concept and hence is prone to misuse

The rampant misuse of the provisions

There have been numerous instances where the law of defamation has been extensively misused by influential litigants to browbeat or arm twist their opponents.

A large number of civil cases are filed alleging forged wills or civil disputes based on forgery, fabrication and misrepresentations. Section 499 would enable the defendant to take recourse to defamation proceedings against the plaintiff to arm twist the party so that he may not pursue his civil case. In terms of the press, criminal defamation has a chilling effect which leads to suppress a permissible campaign. The threat of prosecution alone is enough to suppress the truth being published.

The procedural safeguards can only stand the test of reasonableness if the Exceptions to Section 499 IPC are taken into consideration at the time of summoning of the accused and burden is placed on the complainant to prove that the case is not covered by any exception listed in section 499.

The Role of Press

The Supreme Court in the case of Ramesh v. State of Madhya Pradesh AIR 1950 SC 124 included freedom of press as a fundamental right under article 19(1)(a) of the Constitution of India. The result was that the press could not be subjected to any restriction by making a law unless that law itself was constitutionally valid and was consistent with clause 2 of Article 19. The freedom of press is well recognized in the case of Indian Express Newspaper vs. Union of India in 1985(1)SCC 641

While considering freedom of speech and expression the function of press and media is exposing abuses of power and corruption of public officials and in keeping them responsible to the people, who they are expected to serve. Philosophically, the ultimate good in free society can be reached only by discovery of truth. The concept of freedom of press originated in England. Prosecution for the expression of opinion in matters relating to science or philosophy were resorted to by the Church and the State; to suppress alleged hearsay, sedition and the corruption of the youth.

In today free world freedom of press is the heart of social and political intercourse. Since freedom of expression includes the freedom to propagate one’s own views as well as of others and to communicate them to others, it follows that the freedom of the Press includes the right to give opinions (subject only to such restrictions, imposed by the State, as are constitutionally permissible). Such views or opinions may be those of the editor or author but also those of other people, printed under his direction.

Supreme Court on decriminalising defamation

The constitutional validity of section 499-500 IPC was challenged before the Supreme Court recently in Subramayam Swamy vs Union of India. The Court has upheld the constitutionality of the said provisions and refused to decriminalise the same. The Court observed that the freedom of speech and expression does not confer an absolute right to speak or publish whatever one chooses and it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. The Supreme Court has opined that the reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech.

The loose ends

In the case of Subramanian Swamy, the Court has not take into consideration:

The effect of criminal defamation as being an indirect censorship on the press.

 The said provision has a chilling effect on the freedom of the press and will negatively impact the investigative journalism which is the need of the hour.

The media houses will have to prove the truth of their allegations which process is extremely long and cumbersome and till that time, the editor, journalist and other persons would be treated as an accused and will have to face a lengthy trial.

Criminal cases consist of an onerous procedure for trial i.e. requirement of bail, attendance on every day of hearing, standing in the accused stand several times. Moreover, as per the latest figures there is a pendency of a staggering 3 crore cases in different courts out of which almost 2 crore cases are criminal cases.

There have been gross abuse of such provisions as is evident from the misuse of 498A IPC. The Court has to be alive to the ground realities. Given the case arrears and the slow pace of trials there have been few convictions for criminal defamation. It stifles legitimate speech itself.

 The Court has spoken at length about the importance of the reputation of an individual which is a part of Article 21 and has held it to be a justification for the criminalization of the offence of defamation. But the Court fails to consider the loss in reputation and the consequent violation of Article 21 of the person who has been falsely accused in a case of defamation. Under the circumstance, on the one hand even if the right of reputation of complainant is affected, there is competing right of the accused in defamation case, who, after facing a protracted trial has been acquitted. The provision of sections 499-500 are also required to be considered from this aspect.

Two kinds of defamation actions have emerged. First, political interests have adopted defamation law to settle scores and second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics. In a prosecution for defamation under Section 499 IPC, fair comment would not be protected.

Conclusion

This is the right time the Parliament should act in the matter in public interest. The legislature needs to step in and remove this colonial provision. With criminal defamation laws, critics become criminals and those who wish to participate in the public debate of ideas that characterise democracy face a heightened risk.

Sr. Adv. Sushil Kumar Jain is Senior Advocate, Supreme Court.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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